Understanding Shared Liability in NSW CTP Claims
In a motor accident in New South Wales, it is not uncommon for more than one driver to contribute to the crash. When this happens, the legal principle of shared liability applies. Under the Motor Accident Injuries Act 2017 (MAIA), a person who is partially at fault for a motor accident may still be entitled to compensation for their injuries and financial losses. The amount of compensation received may be reduced in proportion to the individual’s share of responsibility. This is known as contributory fault. The key point is that fault does not automatically bar a claim, instead, the insurer or the claims assessors will assess the degree of fault and adjust the entitlement accordingly.
How Shared Liability Is Determined in NSW
The assessment of shared liability is based on the facts of the accident and the evidence available. The relevant insurer, typically the Compulsory Third Party (CTP) insurer of the vehicle that caused the most harm, will review the circumstances to determine the percentage of fault attributed to each party. This process may involve reviewing police reports, witness statements, photographs, and any available surveillance footage. The Motor Accident Injuries Regulation 2017 sets out the framework for allocating fault, and the Motor Accident Guidelines provide practical direction on how to apply the law in practice.
SIRA, the State Insurance Regulatory Authority, oversees the CTP scheme in NSW and ensures that claims are assessed fairly and consistently. SIRA’s approach to shared liability is based on the principle that no party should be unfairly deprived of compensation simply because they contributed to the accident. However, the compensation awarded will reflect the individual’s level of responsibility.
Practical Examples of Shared Liability in Greater Sydney
Consider a scenario in the Sydney CBD involving two vehicles. A driver turning left from a side street into a major road (e.g., on the Eastern Distributor near the Central Station exit) fails to yield to a vehicle approaching from the right, which is travelling at the legal speed limit. The oncoming vehicle swerves to avoid a collision but collides with a parked car, resulting in injuries to the driver and passenger. An investigation shows that the turning driver failed to give way, contributing 60% to the accident. The oncoming driver was distracted by a mobile phone and failed to slow down in time, contributing 40%.
In this case, both drivers are considered at fault under the CTP scheme. The injured driver and passenger may still claim for medical expenses, loss of income, and pain and suffering. However, their entitlement to weekly income payments and treatment and care benefits will be reduced by 40%, reflecting their 40% share of responsibility. This reduction applies to all benefits under the CTP scheme, including those for future care needs.
Another example occurs in a car park in North Sydney. A driver reversing out of a bay collides with a pedestrian who was walking across the car park near a blind corner. The pedestrian was not using a designated walkway and was looking at their phone. The driver had not checked their mirrors or blind spots before reversing. The insurer assesses the accident and assigns 50% fault to the driver and 50% to the pedestrian. The pedestrian may still claim for injury-related expenses, but their entitlement to compensation will be halved.
These examples reflect how SIRA interprets shared liability in practice. The determination is not based on who was at fault first, but on the degree of responsibility each party had in causing the accident.
Evidence That Matters in Shared Liability Claims
To support a claim involving shared liability, it is essential to gather and preserve evidence. This includes:
- A copy of the police report, if one was filed
- Photographs of the accident scene, vehicle positions, and damage
- Witness contact details and statements
- Medical records showing the nature and extent of injuries
- A record of any lost income due to injury
- Correspondence with the CTP insurer
The quality and completeness of this evidence will influence how fault is apportioned. Inaccurate or incomplete records may result in a less favourable outcome.
Time Limits and Procedural Requirements
A claim for compensation under the CTP scheme must be made within a specified time. The Motor Accident Injuries Act 2017 sets a 3-year limitation period from the date of the accident. However, the insurer may require a claim to be notified within 6 months of the accident to avoid delays in processing. Failure to notify within this timeframe may result in the claim being denied or delayed.
If a claim is disputed, such as when the insurer disagrees with the assigned level of fault, the claimant may request a review. SIRA provides a formal dispute resolution process, and in some cases, the matter may proceed to a tribunal or court. It is important to act promptly and to keep all documentation.
When to Seek Independent Advice
Shared liability claims can be complex, particularly when fault is contested or when injuries are ongoing. The impact of a 40% or 50% fault deduction on long-term benefits and damages can be significant. It is advisable to seek independent legal advice if:
- The insurer disputes the level of fault
- The claim involves a threshold injury (such as a soft tissue injury) and the claimant seeks damages
- The claimant has a serious injury and is seeking damages for future care, loss of capacity, or pain and suffering
Legal advice can help ensure that the claim is properly presented, that all evidence is considered, and that the claimant understands their rights under the CTP scheme.
Next Steps
Every claim depends on its own facts. To request contact about your circumstances, complete the quick, no obligation enquiry form.